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New rights for LGBTQ workers on collision course with religious freedom claims?

MARY CLAY MORGAN

By TED CARTER

Gay, lesbian, bi-sexual and transsexual people in Mississippi no longer fear that their workday may end with a pink slip unrelated to job performance.

The U.S. Supreme Court’s ruling in mid-June instead puts the responsibility on employers to treat LGBTQ workers the same as all other workers. Anything less violates Title VII of the 1964 Civil Rights Act, Trump-appointee Justice Neil Gorsuch wrote in a 6-3 opinion joined by Chief Justice John Roberts and the court’s liberal justices.

But Mississippi could be a test of how far the ruling actually reaches. In addition to a workplace doctrine of “at-will” employment, it has a sweeping anti-gay religious freedom law, House Bill 1523, enacted in 2016 and upheld all the way to the U.S. Supreme Court.

And it was, after all, the Supreme Court’s upholding of same-sex marriage that prompted Mississippi legislators to pass HB 1523, titled the Religious Liberties Accommodations Act.

But the head of the Mississippi ACLU does not see a potential for the state’s faith-based law to become the tool to offset the newly declared LGBTQ job protections.

Don’t look at it as a work-around to the Gorsuch ruling in Bostock v. Clayton County, Ga., said Tom F. Joshua, legal director and interim executive director of ACLU of Mississippi.

“Bostock invalidates any contrary provisions of HB 1523,” Joshua insisted in an email, though lawyers for employers in Mississippi still think the state’s law could clash with precedents set in the new ruling.

Joshua said it comes down to this: “An at-will employee may not be fired for discriminatory reasons, which include race, color, religion, sex or national origin.”

This is because Bostock, a case involving the dismissal of a county worker who joined a gay softball league, set “sex” as a distinct characteristic but inseparable from the concepts of sexual orientation and gender identity; it therefore includes LGBTQ individuals, Joshua added.

Justice Gorsuch suggested thinking of it as whether an employer would keep certain workers on the payroll but for their LGBTQ lifestyles.

In other words, said Gorsuch in his 33-page ruling, employers can’t avoid liability “just by citing some other factor that contributed to its challenged employment decision.

Added the Justice: “So long as the plaintiff’s sex was one ‘but-for cause’ of that decision, that is enough.”

STEVE CUP

As an example, consider an employer with two employees, both of whom are attracted to men, Gorsuch suggested. “The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

Or, Gorsuch continued, take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

“Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision,” he said.

Tolerance as a Guide

While Mississippi lawmakers may have put a priority on anti-gay legislation in recent years, businesses in the state and elsewhere have preferred policies of tolerance, prompted by significant rulings from the federal Equal Employment Opportunities Commission in 20212 and 2015, and federal appellate decisions since then.

There’s no longer a block on the courtroom door, say LGBTQ worker rights advocates.

Steven Cupp, an employment lawyer with Fisher & Phillips in Gulfport, said the high court’s constitutional validation of same-sex marriage led him to anticipate a ruling that tied LGBTQ worker rights to protections included in Title VII of the 1964 Civil Rights Act. Most important, said Cupp, he needed to prepare for a sizable uptick in cases on behalf of employers.

The ruling in favor of Gerald Bostock and two deceased plaintiffs from a pair of other cases will have a “far-reaching impact on employment law,” he said. “We’re going to see a lot of litigation.”

The reason is Mississippi’s Religious Restoration Act, Cupp said.

“It will be especially interesting when Mom & Pops start raising issues of religious freedom,” he said.

Cupp cited Gorsuch’s statement in the ruling that a need to protect a business owner’s religious beliefs “could raise serious issues” under a 1993 federal religious freedoms restoration law.

But use this argument at your own risk, Cupp said. “Aren’t you admitting that this is the reason you fired this person?”

Cupp wondered aloud how “something like this,” a tacit admission of the cause of the firing, proceeds. “Is it up to a jury” to decide questions of religious faith?

“I see this a very slippery as we move along,” he said.

In the meantime, employers must prepare to operate under new rules, said Cupp, advising a first step should be a review of the company anti-discrimination policies.  If they don’t have policies on gender transfers, put them in, he said.

“Make sure your reporting-and-retaliation proceedings are up to speed,” Cupp added.

That is the easy part. Instilling attitudes of tolerance among managers could be a tougher task, but efforts must be made to “engage in appropriate training of supervisors.”

Like Cupp, Jackson employment lawyer Mary Clay Morgan saw a strong likelihood LGBTQ workers would eventually gain the same rights as their heterosexual co-workers.

“I have been recommending to my clients that they act under the assumption that sexual orientation and gender identity would eventually be recognized as protected classes under Title VII,” said Morgan, a partner with Bradley Arant Boult Cummings, in an email.

Getting equal employment opportunity and harassment policies up to date has been a main focus, she said.

Informing and training supervisors on the new workplace protections have also been an emphasis, Morgan said, adding it is equally important for employers to update their employee training materials to ensure that any equal employment opportunity and harassment training makes clear to all employees that LGBTQ employees are protected.

It’s further important that employers understand the ruling protects all employees from discrimination on the basis of sexual orientation or gender identity, Morgan noted. “It doesn’t matter whether the orientation is gay or straight.”

Cupp and Morgan emphasize that Bostock should be at the forefront of hiring decisions as well as actions to address workplace harassment. “Refusal to hire someone on the basis of sexual orientation or gender identity is now prohibited under Title VII,” Morgan said.

Expect LGBTQ worker rights issues to become even more prevalent in the years ahead, including questions of spousal benefits for same-sex couples, Cupp said.

“I think people are going to feel more comfortable about coming out,” he said. “And that shouldn’t be a reason” for retaliation.

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About Ted Carter